The Judiciary and Its Contribution to Ghana After 60

Published on 27th February 2018

The Judiciary has arguably, been the bedrock of Ghana’s constitutional and political development. After several nationalistic struggles, petitions, symposia, letters and the like, in the year 1956, Ghana had its first Ghanaian Chief Justice, Sir Arku Korsah. The struggle did not end there. Even though we had a Ghanaian Chief Justice, the highest Court of the land was in England and not in Ghana. Meaning, justice did not fully emanate from the people of Ghana.

Ghana attained independence a little over 60 years ago on 6th March, 1957. The British bequeathed to the new nation, their traditional system of governance with the Executive, the Legislature and the Judiciary working in harmony, yet abiding by the principle of separation of powers. The culture of democratic governance for Ghana has not been smooth-sailing, with periodic military interventions that have routinely overthrown the Executive, abolished the Legislature and sometimes usurped in various measure or otherwise or compromised the functions and powers of the Judiciary. Yet, all-in-all, the Judiciary has remained the bulwark of governance and administration of justice in this country.

What is the contribution of the Judiciary to the development of Ghana, as we reflect on the past, analyze the present and look into the future?

According to the Constitution of Ghana, ‘justice emanates from the people and shall be administered in the name of the Republic by the Judiciary, which shall be independent and subject only to the Constitution.’ Ghanaian Courts have acted with increased and increasing autonomy under the 1992 Constitution. But it took a while to get to where we are now.

Ghana's legal system was built on a foundation of received Anglo-Saxon common law, statutory law, including instruments such as those that heralded military regimes. In addition to this there is an enduring body of largely unwritten customary usages and practices that are still a contextual feature of the modern legal system of Ghana.

Legal pluralism is evidenced by a co-existence of our customary laws and practice, received Anglo-Saxon common law, and some religious laws, especially in the areas of marriage and inheritance events and incidents. The past and more recent events have also shaped Ghana's legal system, and the greatest catalyst is the constitutional evolution, following Independence.

At the age of 60, when majority of people retire from public service, there is usually a support system which they would have prepared beforehand. However, regardless of the past, they must anticipate the robustness of this support system with regards to the rest of their lives. Even though Ghana’s Judiciary has attained 60 years, as a vital organ of the state, we are not ‘normal’ people and the judicial system is neither retiring nor obsolete; and this analogy points to 3 things:

Retrospection: Have we in the past made the Judiciary robust in its operation as the seat of judicial power?

Introspection: How effective are our current operations based on the foundations laid by our predecessors?

Prospection: Is the Judiciary ready to support and be more efficient in our operations in the future so as to remain robust, meaningful and efficacious?

On the first point regarding retrospection: In New Patriotic Party v Attorney-General (31st December Case) [1993-94] 2 GLR 35 at 43-44 Archer CJ of blessed memory gave a succinct account of the robustness of the Judiciary and the apparent culture of preserving it throughout the history of post-independent Ghana. He concluded by noting that the present Constitution of 1992 is no exception. For it guarantees the independence of the Judiciary, subjecting it to nothing else but the Constitution as expressly stated in article 125(3) which reads:

(3) The judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.

This vested power and the prescription regarding its use have even cost some - who have gone ahead of us - their lives. I have reproduced this to emphasize and demonstrate how the Judiciary has survived through the ups and downs of the constitutional and political development of this country.

With regard to my second point on introspection, the principles and framework for our operations have been consistent as expected of any robust system. These principles and framework meet international standards and constitutional demands. They are what they are and cannot be compromised: fair trial, licet actu non proscripta, Court hierarchy and jurisdiction. I could go on and on.

Analyzing the contribution of the Judiciary to Ghana’s democracy in recent times, the Supreme Court of Ghana has issued broad rulings on individual rights, some of which have required the government to take positive actions on behalf of minority interests. One such important area is the decision that Ghanaian prisoners must be accorded electoral (voting) rights. The Supreme Court’s ruling instructed the Electoral Commission to provide the necessary framework and to begin to build capacity for prisoners, incarcerated for various crimes to be able to exercise their constitutional rights because such rights are not rights that can be thrown away.

Such judicial action has raised important questions such as: Has the Judiciary exceeded its intended authority under the Constitutional system? Has it robbed lawmaking majorities of the decisions that are rightfully theirs to make?

Over time, the Courts have significantly used the law as a tool for social development. On the issue of respect for fundamental human rights, there have been landmark cases such as NPP v IGP, NPP v GBC, Martin Kpebu v AG as well as Nana Adjei Ampofo v Attorney- General which have given more support and meaning to our freedom of movement, freedom of expression, right to liberty as well as right to dignity.

Looking into the future, I would like to serve a word of encouragement to the citizens of Ghana that one need not establish a personal interest in a matter to bring an action to the Supreme Court for interpretation or enforcement of the Constitution. Lawyer Martin Kpebu had no interest in his suit to the Supreme Court which led to the ruling that all offences are bailable. Had he not brought such an action, many are those who would have been bearing the brunt of such an unfortunate legislation. I want to use this opportunity to encourage all citizens of Ghana to be bold in pursuing the path of justice for the good of all.

The Courts have, through the cases of Mensah v Mensah, Arthur v Arthur, as well as Quartson v Quartson, also influenced the distribution of matrimonial property and therefore ventured into areas that border on our Customary Law. Again, the Courts have, in recognition of the supremacy of the Constitution, declared some customary practices which are repugnant to the fundamental human rights as unconstitutional and in some instances, people have been arrested and prosecuted.

Regarding the independence of the Judiciary, it might be helpful to point out, that there was a time in our history as a people that the President, as Head of state had the power to not only appoint, but also dismiss judges, including the Chief Justice. By the grace of God and in furtherance of the dictates of the 1992 constitution, I can boldly discharge my duties without harbouring any fear of being dismissed from office.

Over the years, we have demonstrated that we can exude dynamism without sacrificing consistency and fidelity to our legal and constitutional framework. The various divisions or specialized Courts and technological advancements incorporated into our operations are testament of our resolve to dispense quality justice.

However, as I noted at the 2017 Ghana Bar Conference:

Our existing justice delivery system is fraught with a myriad of challenges (both systemic and human) that undermine its smooth and efficient operation. These challenges do not conduce to the delivery of excellence in judicial administration and it is for this reason that, as Chief Justice, I will bring into application all such feasible systems and means as will effectively deal with such challenges and optimize the delivery of quality outcomes.

Dynamism is important in our pursuit of an excellent justice delivery system. If we must deliver on this mandate which is the duty we owe to the people of Ghana in whose name and for whose benefit we exercise judicial authority, we must be innovative in our approach.

We do have problems that must be tackled to deepen the country’s democracy. It is hoped that authorities will heed the call for reforms to help the Judiciary serve the cause of justice. Being an integral aspect of a viable democracy, the Judiciary must administer justice expeditiously so as to instil confidence in the citizenry that wrongdoing will be dealt with. If the people lose trust in the Judiciary and cannot seek refuge in the law, there will be disaster. That is not how a democracy grows. One of our testaments is the landmark Election Petition Hearing of 2013 and its verdict, which highlighted the role of the Judiciary in preserving the nation’s burgeoning democracy. I was not here but in Arusha and I salute colleagues who held the fort.

Unfortunately for us, some hold the view that the Judiciary has not performed effectively altogether. They assert that as an organ of State, it has failed to live up to expectation and this has given cause for concern; it must not be left in this torpor because its lethargy is dangerous for our democracy. The perceived prevalence of double-dealing in the system does not help matters. The recent Scandal uncovered by ace investigative journalist, Anas Aremeyaw Anas, lends credence to the foregoing assertions. Let’s put together all the forces charged with the administration of justice—the Bench, the Bar, Office of the Attorney-General and Ministry of Justice, the Police Service and the Prisons Service—We need to work together. Anyone who does not deliver is serving as the weakest link.

We will continually be vigilant. The canker will be controlled. Mechanisms are being put in place to minimize face-to-face interactions. We will be rolling out the online filing system. It all involves cost. It is important that the financing of the Judiciary is seriously considered. The people of Ghana deserve quality justice.

Let us together watch out for the weights that throw a wrench in the works for us. I will touch on one of them: corruption. We are in an age in which Corruption has bedevilled our country and become the standard description of public officials. In this regard, I wish to throw a challenge to each one of you present.

Let all of us, within the Judiciary and without, allow any unfair treatment we have ever suffered transform us into people who uphold justice. Let us draw on any feeling of betrayal we suffer because these are precious in teaching us the value of loyalty; loyalty to our country. I turn now to my point on Prospection.

Regardless of the past and present, we must look into the future. The good book says in Luke 14:28 English Standard Version (ESV) 'For which of you, desiring to build a tower, does not first sit down and count the cost, whether he has enough to complete it?' It may cost us money, time, changes in procedure, additional learning. However, while we count these as cost, I submit that we add to the list, the cost of not doing things our own way and the cost of accepting our lot when the scales of justice would not tilt just to favour us.

We have our ambition clearly spelt out, not only by our Constitution but the remaining corpus of law and policy which shape our structure and function. Let us aim consistently being truly esteemed by the people of Ghana and rendering ourselves constantly worthy of their esteem.